Citation Nr: 0842988
Decision Date: 12/12/08 Archive Date: 12/17/08
DOCKET NO. 04-01 673 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a bilateral foot
disability, to include plantar fasciitis and pes planus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. N. Hyland, Counsel
INTRODUCTION
The veteran had active duty from March 1956 to March 1958.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2002 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). This matter was previously before the Board and was
remanded in May 2007.
FINDING OF FACT
A bilateral foot disability, to include plantar fasciitis and
pes planus, was not manifested during the veteran's active
duty service or for many years thereafter, nor is a bilateral
foot disability, to include plantar fasciitis and pes planus,
otherwise related to the veteran's active duty service.
CONCLUSION OF LAW
The criteria to establish service connection for a bilateral
foot disability, to include plantar fasciitis and pes planus,
have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
Upon receipt of a complete or substantially complete
application for benefits, VA is required to advise a claimant
of the information and evidence not of record that is
necessary to substantiate the claim. See 38 U.S.C.A. § 5103
(West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that
notice, VA must inform the claimant of the information and
evidence he is expected to provide, as well as the
information and evidence VA will seek to obtain on his
behalf. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183
(2002).
38 C.F.R. § 3.159 has been recently revised in part. These
revisions are effective as of May 30, 2008. 73 Fed. Reg.
23,353-23,356 (April 30, 2008). Notably, the final rule
removes the third sentence of 38 C.F.R. § 3.159(b)(1), which
had stated that VA will request the claimant to provide any
evidence in the claimant's possession that pertains to the
claim. The final rule also removes the fourth sentence of 38
C.F.R. § 3.159(b)(1), previously indicating that if VA does
not receive the necessary information and evidence requested
from the claimant within one year of the date of the notice,
VA cannot pay or provide any benefits based on that
application. The revised sentence reflects that the
information and evidence that the claimant is informed that
he or she is to provide must be provided within one year of
the date of the notice. Finally, under 38 C.F.R.
§ 3.159(b)(3), no duty to provide section 38 U.S.C.A.
§ 5103(a) notice arises upon receipt of a Notice of
Disagreement (NOD) or when, as a matter of law, entitlement
to the benefit claimed cannot be established. VA may continue
to have an obligation to provide adequate 38 U.S.C.A.
§ 5103(a) notice despite receipt of an NOD if the claim was
denied and compliant notice was not previously provided. See
Mayfield v. Nicholson, 444 F.3d at 1333-34.
The notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess v. Nicholson, 19 Vet. App. 473
(2006). The notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (in this case, the RO).
Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, VA may proceed with adjudication of a claim if
errors in the timing or content of the VCAA notice are not
prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005); Dunlap v. Nicholson, 21 Vet. App. 112
(2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v.
Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v.
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).
In March 2002, October 2002, July 2005, and June 2007
letters, the RO provided notice to the veteran regarding what
information and evidence is needed to substantiate service
connection, increased rating, and earlier effective date
claims. The letters also advised the veteran of what
information and evidence must be submitted by him and what
information and evidence will be obtained by VA.
All the notice was not provided until after the rating
decision on appeal was issued. In particular, the notice as
to the information and evidence necessary to establish a
disability rating and an effective date in the event service
connection is established was not provided until the June
2007 letter. However, the veteran was not prejudiced from
this timing error because the veteran's claim was
readjudicated in the October 2008 supplemental statement of
the case. Moreover, in light of the denial of the service
connection claim in this appeal, the question as to which
disability rating and effective date to assign has been
rendered moot. Thus, the Board finds that the essential
fairness of the adjudication process was not affected by the
VCAA timing error.
The RO has taken appropriate action to comply with the duty
to assist the veteran with the development of his claim. The
record includes private medical records and lay statements.
The veteran's service medical records appear to have been
destroyed in a fire at the National Personnel Records Center
(NPRC). In a June 2007 letter, the veteran was advised of
alternative sources of evidence that could be used to
substantiate his claim, in accordance with VA's duty to
notify. See Dixon v. Derwinski, 3 Vet. App. 261, 263-264
(1992); see Washington v. Nicholson, 19 Vet. App. 362 (2005)
(Remanding claim to the Board to address VA's duty to
"exercise greater diligence in assisting the appellant with
the development of evidence in support of his claim where
medical records were lost while in VA custody.").
The record reflects that the RO has exhausted all efforts to
obtain the veteran's military records and that further
attempts would be futile. In light of these facts, the Board
finds that VA has made every attempt to locate the veteran's
service medical records and that further search attempts
would not prove useful.
The United States Court of Appeals for Veterans Claims (CAVC)
has also held that in cases where records once in the hands
of the government are lost, the Board has a heightened
obligation to explain its findings and conclusions and to
consider carefully the benefit-of-the-doubt rule. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis
has been undertaken with this heightened duty in mind. The
case law does not, however, lower the legal standard for
proving a claim for service connection but rather increases
the Board's obligation to evaluate and discuss in its
decision all of the evidence that may be favorable to the
veteran. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Further,
the law provides that the presumed loss or destruction of
Government records does not create an "adverse presumption"
against the Government. Jandreau v. Nicholson, 492 F.3d 1372
(Fed. Cir. 2007) and Cromer v. Nicholson, 19 Vet. App. 215,
218 (2005); affirmed 455 F.3d 1346 (2006).
The veteran has not been afforded a VA examination in
relation to his claim. However, there is no competent
evidence of foot problems during the veteran's active duty
service period or for over 30 years after his discharge from
service. A VA examination will not change this fact. The
Board finds that the record as it stands includes sufficient
competent evidence to decide this claim. See 38 C.F.R.
§ 3.159(c)(4).
Under these circumstances, the Board finds no further action
is necessary to assist the veteran with the claim. The record
reflects that the facts pertinent to the claims have been
properly developed and that no further development is
required to comply with the provisions of the VCAA or the
implementing regulations. That is to say, "the record has
been fully developed," and it is "difficult to discern what
additional guidance VA could [provide] to the veteran
regarding what further evidence [he] should submit to
substantiate [his] claim." Conway v. Principi, 353 F. 3d.
1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate
the claim.
Analysis
The veteran contends that he has a bilateral foot disability
that was incurred during active service. Having carefully
considered the claim in light of the record and the
applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal will be denied.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury
or disease occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
The record reflects that the veteran was discharged from
active duty service in 1958. The first evidence of any
complaints of or treatment for foot problems is not until
approximately 1999-2000. The veteran has submitted "buddy
statements" written in 2007 by individuals who claim to have
known the veteran to have complained of foot pain for seven
or eight years. This would reflect complaints of foot pain
beginning in 1999, more than 30 years after the veteran's
discharge from active duty service. Private medical records
reflect treatment for foot complaints beginning in 2000,
approximately 31 years after the veteran's discharge from
active duty service.
To the extent that the veteran is now arguing that he had
continuity of foot complaints from service until present
time, his contentions are outweighed by the negative post-
service medical evidence. See Maxon v. West, 12 Vet. App.
453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d
1330, 1333 (Fed. Cir. 2000), [it was proper to consider the
veteran's entire medical history, including a lengthy period
of absence of complaints]; see also Forshey v. Principi, 284
F.3d 1335 (Fed. Cir. 2002) ["negative evidence" could be
considered in weighing the evidence].
Finally, there is no competent medical evidence of record
which relates the veteran's current bilateral foot complaints
and/or diagnoses to his active duty service period.
In light of the lack of in-service foot complaints or
diagnoses, the long post-service period of time with no
evidence of complaints or treatment for foot problems, and
the lack of competent evidence etiologically relating the
veteran's current foot complaints/diagnoses to his active
duty service period, the Board finds that the preponderance
of the evidence weighs against the veteran's claim. It
follows that entitlement to service connection for a
bilateral foot disability, to include plantar fasciitis and
pes planus, is not warranted.
In making these determinations, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b), but there is not such a
state of approximate balance of the positive evidence with
the negative evidence to otherwise warrant a favorable
decision.
ORDER
Service connection for a bilateral foot disability, to
include plantar fasciitis and pes planus, is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs